Delhi District Court
State vs . Vinod Kumar on 23 October, 2019
IN THE COURT OF SH. ANUJ AGRAWAL
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 71/11
PS : New Ashok Nagar
u/S : 279/338 IPC
STATE Vs. VINOD KUMAR
JUDGMENT
A New case number 4971/16 B Name of the Ms. Pinki D/o Shri Pal Singh complainant C Name of the accused Vinod Kumar S/o Sh. Bhawar & his parentage and Singh R/o 7, South Anarkali, Delhi address D Offence Complained of 279/337 IPC E Date of commission of 07.03.2011 offence. F Date of Institution 04.02.2012 G Offence Charged 279/338 IPC. H Plea of the accused Pleaded not guilty I Order Reserved on Not reserved J Date of 23.10.2019 Pronouncement K Final Order Convicted u/s 279 IPC and acquitted u/s 338 IPC
BRIEF STATEMENT OF THE REASONS FOR THE DECISION 1 The case of the prosecution in nutsheel is that on 07.03.2011 at about 03:15 PM infront of CRPF Gate, Delhi falling within the STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.1/11 jurisdiction of Police Station New Ashok Nagar, accused Vinod Kumar, was found driving vehicle bearing Regn. No. DL-2W- 2934 (TATA Magic) in rash and negligent manner and while driving so, he hit against pedestrian namely Pinki and caused grievous injury to her. It is alleged that accused Vinod Kumar committed offences punishable u/s 279/338 IPC. FIR 2 On the basis of the said allegations an FIR bearing number 71/11 under section 279/338 IPC was lodged at Police Station New Ashok Nagar on 07.03.2011 and matter was investigated. NOTICE 3 After investigation, charge-sheet under section 173 Cr. P.C was filed on 04.02.2012. The accused was supplied with copies of chargesheet and annexed documents.
4 On the basis of the charge-sheet, a notice for the offence punishable under section 279/338 IPC was served upon accused Vinod Kumar and read out to the said accused, to which he pleaded not guilty and claimed trial on 04.02.2012.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 06 witnesses in all.
6 PW-1 is Ct. Palvinder is a witness to investigtion who accompanied the IO to the spot.
STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.2/11 7 PW2 Ms. Pinki (wrongly cited as PW1) is the complainant/injured and star witness of the prosecution. She deposed that on 07.03.2011 she was coming from Sector 57, Noida to Mayur Vihar Ph III, that she was crossing the road through Zebra Crossing infront of CRPF Camp Gate when there was red light and vehicles were stopped, that suddenly, a Gramin Sewa bearing Regn. No. DL-2W-2934 came from the side of Khoda being driven by its driver at a very high speed and in very negligent manner and hit her. She further deposed that she sustained injuries.
8 She further deposed that her father came there and informed the police. She was taken to LBS Hospital where IO came and recorded her statement Ex. PW-1/A. She correctly identified the accused before court and also identified the offending vehicle through photographs Ex. P1 to P4. The witness was cross examined at length by ld. Defence counsel.
9 PW-2 is Dr. Rachna Jain who deposed that on 07.03.2011, she was posted as Radiologist at LBS Hospital. On that day, she examined the X-Ray of Pinki and found that there was fracture of femur of her right thigh. Except this, no fracture was found. She prepared a report in this regard which is Ex. PW-2/A. 10 PW-3 is Sh. Roop Singh who is the owner of offending vehicle i.e. TATA Magic. He deposed that at the time of accident said tempo was being driven by accused Vinod Kumar and later on he STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.3/11 got released the said tempo on superdari vide superdarinama Ex. PW-3/A. 11 PW-4 is ASI Man Singh who deposed that on 07.03.2011 he was posted at PS New Ashok Nagar as HC and was performing duty as Duty Officer from 8 AM to 4 PM. He further deposed that at about 03:15 PM, Ct. Balvinder Singh brought the rukka sent by IO/SI Neetu Singh. He recorded the present FIR Ex. PW-4/A and handed over the same alongwith original rukka to Ct. Balvinder.
12 PW-5 is Retd. IO Om Pal Singh who deposed that on 07.03.2011, he was posted as ASI at Accident Cell East. On the said date investigation of the present case was marked to him. He reached the spot where IO SI Neetu Singh met him. SI Neetu Singh handed over copy of FIR, original rukka, site plan, seizure memo and MLC of injured to him. At that time injured was in hospital and offending vehicle was deposited in the Malkhana. He recorded the statement of SI Neetu Singh. PW-5 further deposed that on 12.03.2011, he got the offending vehicle mechanically inspected and recorded the statement of Mechanical Inspector. PW-5 gave notice to the owner of offending vehicle who produced the accused on 23.03.2011 as the driver of offending vehicle. He arrested the accused and personally searched vide memos Ex. PW-5/A & PW-5/B. 13 He further deposed that he obtained the opinion on the MLC bearing no. 2134/11 of the injured on 22.09.2011 which was STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.4/11 opined as grievous and accordingly Section 338 IPC was invoked. PW-5 recorded statement of witnesses and after completion of investigation filed the charge-sheet. PW-5 correctly identified the accused before court and identified the offending vehicle through photographs Ex. P1 to P4.
14 PW6 is IO SI Nitu Kumar who deposed that on 07.03.2011 he was posted at PS New Ashok Nagar as SI. He received DD No. 61B. Thereafter, he alongwith Ct. Palvinder reached at LBS Hospital where he met with injured Pinki and recorded her statement Ex. PW-1/A. He also obtained MLC of injured. He prepared tehrir and handed over the same to Ct. Palvinder for registration of FIR. Thereafter, he gave information to Accident Cell. He found that accused had escaped after admitting the injured in the hospital from the hospital after leaving the offending vehicle i.e. Gramin Sewa. PW-6 seized the offending vehicle vide seizure memo Ex. PW-6/A. Thereafter, PW-6 went to the spot and prepared site plan Ex. PW-6/B. PW-5/HC Ompal came at the spot and PW-6 handed over all the documents to him. PW-6 correctly identified the offending vehicle through photographs Ex. P1 to P4.
15 Record transpires that during course of trial, accused admitted Mechanical Inspection Report (Mark A1) & MLC No. 2134/11 (Mark A2). Therefore the said documents can be read into evidence without formal proof of the same in terms of section 294 Cr.P.C.
STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.5/11 16 On conclusion of PE, matter was fixed for statement of accused.
STATEMENT OF ACCUSED 17 Statement of accused was recorded u/s 313 Cr.P.C. on 07.05.2019, wherein, the entire incriminating evidence proved on record against him was put to the accused. He stated that he has been falsely implicated in the present case, he has not committed any crime.
DEFENCE EVIDENCE 18 The accused did not lead any evidence to prove his stand despite opportunity.
19 Record transpires that at the stage of final arguments, matter was compromised between accused and injured qua offence u/s 338 IPC and statement of injured was also recorded to this effect. In view of the compounding of the offence, accused stands acquitted u/s 338 IPC.
20 Now to the charges u/s 279 IPC, I have heard the rival submissions and carefully perused the record. It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond reasonable doubt.
STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.6/11 21 Per contra, Ld. Defence counsel has argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt and therefore, the case of prosecution cannot survive against accused.
22 It is well settled principal of law that the prosecution has to prove the case beyond reasonable doubt and has to stand upon on its own legs. The prosecution also cannot draw any strength from the case of the accused howsoever weak it may be. It is also well settled proposition of criminal law that the accused has a profound right not to be convicted for an offence which is not established by the evidential standard of proof beyond reasonable doubt. It is also well settled principle of law that in a criminal trial the burden of proof always rests upon the prosecution and the same never shift onto the accused.
23 The accused in the present case has been charged with offence under Section 279 IPC. To prove the case against the accused the prosecution was required to prove the following facts:
A. The identity of the accused being the driver of the offending vehicle;
B. That the accused caused the accident by his rash or negligent driving at a public place;
STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.7/11 THE IDENTITY OF THE ACCUSED
24 As far as identity of accused is concerned, it is evident from the record that injured who is the sole eye witness has identified the accused as driver of the offending vehicle. Further the owner of the offending vehicle who was examined as PW3 has also deposed in no unclear terms that it was accused Vinod who was driving the offending vehicle at the relevant time. Therefore in view of testimony of PW2 and due corroboration of same by PW3, it has been proved on record that accused was the driver of the offending vehicle.
RASHNESS OR NEGLIGENCE 25 Although it has got proved that accused was the driver of the offending vehicle, however, the rashness or negligence on the part of the accused is also to be proved by prosecution. In Idu Beg, (1881) 3 All 776 which has become locus classics, it was held that "Criminal rashness" is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either into the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted". In STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.8/11 the case of Rathanashyalvan Vs State of Karnataka 2007 I AD (Cr.) (S.C.) 433 the Hon'ble Supreme Court also observed the concept of Criminal Rashness and Criminal Negligence in the similar terms.
26 In view of the above settled law, now the question arises for consideration is whether the prosecution has been able to prove the rashness or negligence on the part of accused in causing accident. A careful perusal of testimony of PW2 i.e. injured reveals that she has gone whole hog with the case of prosecution qua the aspect of rashness and negligence on the part of accused. PW-1 in her testimony has deposed categorically that she was crossing the road through Zebra crossing when there was redlight and vehicles were stopped, that suddenly the offending vehicle came from side of Khoda being driven by its driver at a very high speed and in very negligent manner and hit her. In my considered view, the act accused, hitting the victim when she was crossing the road through zebra crossing and when the traffic signal was red, was grossly rash and negligent. The very manner of driving by accused reeks of risk taking and demonstrates his casual attitude towards the other road users including victim. The negligence of accused is writ large in the present case. Once the victim was crossing through Zebra crossing (on traffic signal being red), the onus shifts upon accused to explain the cause for his vehicle hitting the victim. However, accused did not discharge his burden. Therefore, in view of the cogent testimony STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.9/11 of PW2, it has been proved on record that accused was rash and negligent in driving the offending vehicle.
27 The Ld. Counsel of the accused has tried to contend that there are material contradictions in the testimonies of the prosecution witnesses which rendered them to unbelievable and untrustworthy. I have carefully gone through the testimonies of the prosecution witnesses but have not been able to find any material contradiction in their testimonies. Their testimonies have been consistent and remained unshaken despite the lengthy cross-examination. Although, I conclude that no material contradiction has emerged in the testimony of any prosecution witness but at this stage I can discuss the well settled proposition of law in this regard. Only material contradiction affect the case of the prosecution and not the normal discrepancies. In State of Rajasthan Vs. Kalki (1981) 2 SCC 752 the Hon'ble Supreme Court was pleased to held that "normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however, honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancies may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so". It is clear from the record STATE Vs. VINOD KUMAR FIR NO. 71/11 PAGE No.10/11 that no material discrepancy has come on the record which can affect the case of the prosecution. I accordingly reject the aforesaid contention of the Ld. Counsel for the accused.
28 From the above said discussion, it is apparently clear on record that the prosecution has successfully proved the case against the accused beyond all reasonable doubts. Hence, accused stands convicted for the offence U/sec. 279 IPC. Let the parties be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT ON 23.10.2019 (ANUJ AGRAWAL) ACMM (EAST)/KKD/23.10.2019 Certified that this judgement contains 11 pages and each page bears my signatures.
Digitally (ANUJ AGRAWAL)
signed by
ANUJ ACMM (EAST)/KKD/23.10.2019
ANUJ AGRAWAL
AGRAWAL Date:
2019.10.23
02:24:44
+0530
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